Vasquez v. D.C. Zoning Comm'n

311 A.3d 288

Merary VASQUEZ, et al., Petitioners,

v.DISTRICT OF COLUMBIA ZONING COMMISSION, Respondent,andPark View Community Partners, Intervenors.

Nos. 22-AA-0554 & 22-AA-0571

District of Columbia Court of Appeals.

Submitted November 8, 2023

Decided January 25, 2024^*

On Petition for Review of an Order of the District of Columbia Zoning Commission (ZC16-11(2))

Merary Vasquez, Adam Green, Princess Iyana Goodwin, Tonya Williams, Ryan Cummins, Marc Poe, and Shonta’ High were on the brief for petitioners.

Brian L. Schwalb, Attorney General for the District of Columbia, Caroline S. Van Zile, Solicitor General, Ashwin P. Phatak, Principal Deputy Solicitor General, and Graham E. Phillips, Deputy Solicitor Gen- eral, and Richard S. Love, Senior Assistant Attorney General, were on the brief for respondent.

Philip T. Evans, Washington, DC, Cynthia A. Gierhart, Washington, DC, and Kyrus L. Freeman, Washington, DC, were on the brief for intervenors.

Before Easterly, and McLeese,

Associate Judges and Thompson, Senior Judge.

Thompson, Senior Judge:

This matter is before us on a petition for review of a November 18, 2021, Order on Remand of the District of Columbia Zoning Commission (the "Commission") approving a consolidated planned-unit development ("PUD") application submitted by Park View Community Partners (the. "intervenor") and the District of Columbia, and the Commission’s June 28, 2022, order denying reconsideration. We first considered this PUD application in Cummins v. D.C. Zoning Comm’n, 229 A.3d 768 (D.C. 2020), in which we vacated the Commission’s March 2017 initial order approving the PUD and remanded for the Commission to take into account several specified factors, identify record support for its conclusions, analyze the evidence, determine again whether to approve the application, and explain its decision. Petitioners now raise numerous challenges to the Order on Remand. They ask that we vacate the Commission’s decision with prejudice. For the reasons discussed below, we affirm the Commission’s decision.

I. Background

The intervenor submitted its PUD application in May 2016, proposing to construct an approximately ninety-foot tall apartment building, an approximately sixty-foot tall building for seniors, and eight townhomes on a lot owned by the District of Columbia that previously housed the Bruce Monroe Elementary School, a public school building that was demolished in 2009. Cummins, 229 A.3d at 771-73. The PUD site, which the parties refer to as the "Bruce Monroe site," has been utilized as a temporary community park since that time. Id. at 778. A substantial number of the proposed 273 hew residential units would be replacement public housing units, a large percentage of the other newly constructed units would be affordable housing units, and the remaining units would be market-rate residential units. Id.

In its March 2017 initial decision, the Commission approved the PUD (sometimes referred to hereinafter as the "project") in an order that this court observed was "an over ninety-percent verbatim copy of intervenor’s proposed findings of fact and conclusions of law." Id. at 775. This court found that the order "did not explicitly identify a single respect in which the PUD as approved would have an adverse effect or would be inconsistent with a policy in the Comprehensive Plan." Id. In remanding to the Commission, this court required the Commission to do the following:

(1) take into account that the ninety-foot-high building protrudes into [an area that the Comprehensive Plan’s Generalized Policy Map ("GPM") designates as] a Neighborhood Conservation Area [and "explicitly address the implications of the protrusion," id, at 777];

(2) take into account that the areas adjacent to the western portion of the PUD are designated moderate-density residential, not medium-density residential [as the March 2017 initial order erroneously stated];

(3) take into account that the ninety-foot-high building and the sixty-foot-high building are not generally consistent with, respectively, the medium-density-commercial and moderate-density-residential designations in the FLUM [Future Land Use Map,] [a factor that "weigh[s] against the proposed PUD … when deciding whether the PUD … is on balance consistent with the Comprehensive Plan and whether the benefits of the PUD outweigh the PUD’s adverse effects," id. at 780];

(4) either identify record support for the statement that the senior building "mimics many other apartment houses that have been built as infill developments in the area" or forgo reliance on that consideration;¹

(5) independently analyze and discuss whether the PUD is inconsistent with specific policies, or would have adverse effects, timely identified before the Commission²

(6) determine whether, in light of the Commission’s conclusions on these issues, the Commission should grant or deny approval of the PUD; and

(7) explain the Commission’s reasoning in granting or denying approval.

Id. at 781.

At a post-remand meeting on June 29, 2020, the Commission issued a procedural order requesting that the parties submit written responses to the seven issues identified in the court’s opinion. Intervenor, Advisory Neighborhood Commissions 1A & 1B, the Park Morton Residents Council, and Bruce Monroe Park Neighbors all submitted responses. The Commission considered the parties’ responses at a meeting on July 26, 2021, and, noting that the Comprehensive Plan had been amended since the Commission first considered the PUD, decided to hold an October 19, 2021, limited-scope public hearing on the effect of the updated Comprehensive Plan on the Commission’s consideration of the PUD. On November 18, 2021, upon consideration of the entire record, the Commission again voted unanimously to grant the PUD application. As discussed in further detail below, the Commission found that the proposed PUD is inconsistent with some specific policies of the Comprehensive Plan, but that the PUD is consistent with the Comprehensive Plan as a whole. The Commission also identified several adverse impacts of the proposed PUD, explained why they will be fully or partially mitigated, and concluded that the adverse impacts are outweighed by the PUD’s benefits. The Commission found that the "most significant benefit" of the PUD is the creation of new housing—"a significantly greater amount of affordable housing and at a much steeper subsidy level" than required by the zoning regulations. Multiple petitioners filed for review of the Order on Remand. We consolidated the petitions for purposes of our review.

IL Applicable Law

[1–3] A PUD application "generally requests that a site be rezoned to allow more intensive development, in exchange for which the applicant offers to provide amenities or public benefits which would not be provided if the site were developed under matter-of-right zoning." Beloved Cmty. All. v. D.C. Zoning Comm’n, 284 A.3d 728, 732 (D.C. 2022) (quoting Blagden Alley Ass'n v. D.C. Zoning Comm’n, 590 A.2d 139, 140 n.2 (D.C. 1991) (internal quotation marks omitted)). "When evaluating a PUD application, the Zoning Commission is required to 'judge, balance, and reconcile the relative value of the project amenities and public benefits offered, the degree of development incentives requested, and any potential adverse effects according to the specific circumstances of the case.'" Howell v. D.C. Zoning Comm’n, 97 A.3d 579, 581 (D.C. 2014) (quoting 11 D.C.M.R. § 2403.8 (2013)). "To approve a PUD, the Commission must, among other requirements, find that the impact of the project on the surrounding area and the operation of city services and facilities [is not] unacceptable, but … instead [is] either favorable, capable of being mitigated, or acceptable given the quality of public benefits in the project[.]" Union Mkt. Neighbors v. D.C. Zoning Comm’n, 197 A.3d 1063, 1069 (D.C. 2018) (internal quotation marks omitted).

[4–9] "The Commission may not approve a PUD that is inconsistent with the Comprehensive Plan," which is "a legislative enactment establishing a broad framework intended to guide the future land use planning decisions for the District." Cummins, 229 A.3d at 771 (internal quotation marks omitted). "The Comprehensive Plan reflects numerous occasionally competing policies and goals, and, except where specifically provided, the Plan is not binding." Id. (internal quotation marks omitted). "If a PUD implicates conflicting mandatory provisions of the Comprehensive Plan, the Commission may approve the PUD only if the Commission (1) concludes that disregarding one such provision is necessary to comply with one or more, other such provisions and (2) explains why it is deciding to favor one such provision over the other such provision." Id. (internal quotation marks omitted). "With respect to non-mandatory provisions of the Comprehensive Plan, the Commission may balance competing priorities in determining whether a PUD is consistent with the Comprehensive Plan as a whole." Id. (internal quotation, marks omitted). But the Commission may not "simply disregard some provisions of the Comprehensive Plan on the ground that a PUD is consistent with or supported by other provisions of the Comprehensive Plan." Id. at 771-72 (internal quotation marks omitted). "Rather, the Commission may approve a PUD that is inconsistent with one or more non-mandatory policies in the Comprehensive Plan only if it recognizes these conflicting policies and explains why they are outweighed by other, competing considerations." Id. at 772 (internal quotation marks omitted).

[10–12] When reviewing an order of the Commission, "we start from the premise that the [Commission’s] decision … is presumed to be correct, so that the burden of demonstrating error is on the … petitioner who challenges, the decision." Union Mkt. Neighbors, 197 A.3d at 1068 (internal quotation marks omitted). "We do not reassess the merits of the decision, but instead determine whether the [Commission’...